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2016 DIGILAW 122 (JHR)

Birendra Kumar v. Dhananjai Jha

2016-01-18

SHREE CHANDRASHEKHAR

body2016
ORDER : Aggrieved by order dated 21.09.2013 in Title (Eviction) Suit No. 03 of 2008 whereby, application under Order VII Rule 11 (d) CPC has been rejected, the present writ petition has been filed. 2. The petitioner is defendant in Title (Eviction) Suit No. 03 of 2008. The eviction suit was filed for ejection of the defendant from the Schedule-A premises. The plaintiff claimed that the defendant has been paying rent regularly for the rented premises consisting of one room with “dhaba” however, from April, 2008 he failed to pay rent for the same. The eviction suit was filed under Section 11 (c) of the Bihar Building (Lease, Rent & Eviction) Control Act, 1982. In the pending suit the petitioner/defendant appeared and filed written statement claiming that he has purchased the premises comprised under plot no. 32/110 through registered sale deed dated 03.06.2008 i.e. prior to institution of the eviction suit. In the pending suit, the defendant filed application dated 24.03.2011 under Order VII rule 11 (d) CPC seeking rejection of the plaint. 3. The learned counsel for the petitioner submits that the petitioner is a purchaser of the premises comprised in Plot no. 32/110 through registered sale deed however, the said sale deed has not been challenged by the plaintiff in any legal proceeding and thus, under Section 31 of the Specific Relief Act r/w Article 59 of the Limitation Act, the suit is barred. It is contended that filing of the Title (Eviction) Suit No. 03 of 2008 suppressing material facts would amount to abuse of the process of the court. Referring to judgment in “Mayar (H.K.) Ltd. and Others vs. Owners & Parties, Vessel M.V. Fortune Express and Others” (2006) 3 SCC 100 , the learned counsel for the petitioner submits that the trial court can exercise power under Order VII Rule 11 CPC to reject the plaint on the ground of abuse of the process of the court. 4. Mr. Sudhir Kumar Sharma, the learned counsel for the respondent supports the impugned order dated 21.09.2013 in Title (Eviction) Suit No. 03 of 2008. 5. I have carefully considered the submissions made on behalf of the parties and perused the documents on record. 6. Order VII Rule 11 (d) CPC reads as under :- “where the suit appears from the statement in the plaint to be barred by any law”. 7. 5. I have carefully considered the submissions made on behalf of the parties and perused the documents on record. 6. Order VII Rule 11 (d) CPC reads as under :- “where the suit appears from the statement in the plaint to be barred by any law”. 7. It is no longer resintegra that application under Order VII Rule 11 (d) CPC has to be decided on a plain reading of the averments in the plaint. The question whether a suit is barred by any law or not would depend upon the facts disclosed in the case. An application for rejection of the plaint can be allowed if the averments in the plaint taken to be correct as a whole disclose the suit to be barred by any law. Thus, for deciding the said question, the averments made in the plaint only are relevant. In “Kamala & Ors. Vs. K.t. Eshwara Sa and Ors.” (2008) 12 SCC 661 , the Hon'ble Supreme Court has held as under :- 21. “Order 7 Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order 7 Rule 11, in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking clause (d) of Order 7 Rule 11 of the Code are the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. Absence of jurisdiction on the part of a court can be invoked at different stages and under different provisions of the Code. Order 7 Rule 11 of the Code is one, Order 14 Rule 2 is another.” 8. The disputed facts averred by the petitioner/defendant in the written statement have not been disclosed in the plaint. The plea that the petitioner is a purchaser through the registered sale deed dated 03.06.2008 which is prior to the filing of the suit and thus, the plaintiff must be imputed with the knowledge of purchase by the petitioner, is liable to be rejected. The plea that the petitioner is a purchaser through the registered sale deed dated 03.06.2008 which is prior to the filing of the suit and thus, the plaintiff must be imputed with the knowledge of purchase by the petitioner, is liable to be rejected. The plaintiff is not a party to the execution of the sale deed dated 03.06.2008. Furthermore, the claim of the defendant is that he is the owner of the property comprised under Plot No. 32/110 whereas, the suit has been filed with respect to ejection of defendant from the tenanted premises under Schedule-A property. The petitioner has asserted that both the properties are different and, he has denied the landlord tenant relationship between the parties. The aforesaid issues can be adjudicated only when the parties lead evidence during the trial. 9. Considering the aforesaid fact, I find no infirmity in the impugned order dated 21.09.2013 and accordingly, the writ petition is dismissed.